THINGS CAN CHANGE IN THE JUDICIARY

Jan Tuerlinckx is a lawyer at Tuerlinckx Fiscale Advocaten/Tuerlinckx Tax Lawyers 

There once was an entrepreneur. No, this is not the start of a fairy tale, but of my career thirty years ago. That entrepreneur was being swindled by one of his employees, but he didn't take it lying down. He ingeniously set up a system of checks to catch the thief and prove the theft. This did not happen overnight, however. Our entrepreneur started by inviting a bailiff to establish and formally confirm the truthfulness of his investigation. His strategy was successful: he collected evidence of the theft and, in the presence of a bailiff, the employee confessed to the crime. Now in possession of a rather exhaustive and thorough file, the entrepreneur took his case to the public prosecutor's office. Everyone who saw the file believed it would be an open-and-shut case. However, the procedure did not go as expected, resulting in acquittals, both criminal and civil, for the employee.
The public prosecutors no longer want to be forced into proceedings by the litigants.

Equally surprised and curious, I asked Victor Dauginet, my mentor at the time, how I should interpret this outcome. With his usual wisdom, he told me that the entrepreneur had crossed a line. In serious cases, it is up to the prosecution to exercise power. The prosecutors conduct the investigation and collect evidence, not the citizen. That's an unwritten rule. As a result, the system turned against the entrepreneur and not against the thief. This insight has provided me with definite tools that have been helpful throughout my career.

What should the entrepreneur have done? Submit a civil complaint and let the public prosecutor's office conduct the investigation, without carrying out investigations on his own. Our entrepreneur may have considered it, but didn't proceed, because he thought it would be inefficient to say the least and, in any case, slow.

In their 'mercurial' speeches given before the Court of Cassation at the opening of this judicial year, the public prosecutors even argued for the abolition of civil law proceedings. For the sake of clarity: by instituting such proceedings, the litigant obliges the public prosecutor's office to initiate a criminal investigation. Since the citizen can, so to speak, force the public prosecutor's office, public prosecutors would like this to end. This, of course, has to do with the pressure on the judiciary and the dire lack of people and resources.

Admittedly, our jurisdiction is one of the few in which the litigant instituting civil proceedings has an active right of initiative in criminal law. This does not mean that the litigant in other jurisdictions will be left empty-handed. In other jurisdictions, he or she may legally object to the fact that the public prosecutor's office may disregard complaints. In addition, they developed what could for the sake of convenience be called a system between civil and criminal law. This allows the litigant to be more assertive, sometimes even aggressive, when gathering evidence to prove his or her point.

The abolition of civil proceedings will have to be accompanied by a general overhaul of the law of evidence and the legal remedies that can be used for this purpose. There are no miracle cures, not even to relieve the pressure on the justice system. Lightening it on one side of the spectrum will cause aggravation on the other side. Shall we bet that a practice of quasi-civilian searches will develop, which the judiciary will have to guide in the right direction?

Imagine the bewilderment felt by our entrepreneur should he read this column now. His initiative, which was condemned thirty years ago, is being encouraged today.

THE AUTHOR IS A LAWYER-PARTNER AT TUERLINCKX TAX LAWYERS

Jan Tuerlinckx@tuerlinckx.eu